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In his speech on national security, President Obama discussed his reasons for opposing the release of additional photographs of abuse at Abu Ghraib. I want to address a seemingly small legal point about the release. A lot of discussion of President Obama’s decision seems to assume that it’s up to him to decide whether to release the photos. It isn’t. A court has ordered the release under the Freedom of Information Act. That Act requires disclosure unless the material is “exempt” from disclosure. During the litigation over disclosure the Bush administration claimed that the photos were exempt because their release would invade the detainees’ privacy – a claim that no one thinks is serious – and, more important, would “endanger the life or physical safety of any individual.” President Obama’s position is that the release would indeed endanger American lives by “inflam[ing] anti-American opinion.”

What’s at stake is interpreting the FOIA’s exemption. The lower courts said that the exemption’s reference to “any individual” meant that the government had to identify some specific individual who would be endangered. It said that this interpretation made sense, because otherwise the exemption would become a substitute for another exemption, allowing the government to withhold material that has been “properly classified.” That is, the government could protect the photos by classifying them – if the reasons President Obama has for keeping the photos secret are good reasons for classifying them, under existing (or perhaps to-be-modified) standards for classification.

The lower court observed, “The defendants have not explained whether the Army photos may be properly classified, and thereby rendered exempt from disclosure, or why that has not occurred.” The lower court’s interpretation of the FOIA and its exemptions seems sensible. Maybe the Supreme Court will disagree. But, on the face of things, there’s a much simpler way to handle the problem – classify the photos. The real puzzle is why the administration hasn’t tried.

Of course the administration can ask the Supreme Court to review the lower court’s decision. And maybe the Court will agree to hear the appeal, and maybe it will reverse the lower court. But, even if the Court agrees with the lower court, the administration will have to decide whether to classify the photos – thereby generating new litigation and further delaying their release. Among lawyers and politicians, this is called “kicking the can down the road.”

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